When a state’s drug chemist lies for years, should all her cases be thrown out?

Former Massachusetts crime lab chemist Annie Dookhan at a hearing in November 2013 where she pleaded guilty to obstruction of justice, perjury and tampering with evidence. She was sentenced to three to five years in prison, and was paroled in April 2016. (AP/The Boston Globe, David L Ryan)

Before Massachusetts discovered in 2013 that one of the chemists in its state crime lab was actually using the drugs she was testing, it uncovered another chemist in 2012 who admitted she had been falsifying some of her drug testing results for more than eight years. Both chemists were arrested, pleaded guilty and served prison time.

So what should happen to the tens of thousands of cases processed by Sonja Farak in the Amherst lab and Annie Dookhan in the Boston lab? In Dookhan’s case from 2012, county prosecutors produced data in May of this year showing that her test results were involved in more than 24,000 convictions. The number of Farak cases has not yet been determined but is likely to be high as well. Now the American Civil Liberties Union and the Massachusetts public defender are asking that, in light of the failed war on drugs and the damage these cases have already done to mostly low-level drug users, all 24,000 of the Dookhan-related convictions should be thrown out.

No way, say the prosecutors in the eight counties around Boston where Dookhan handled drug evidence. They want each case individually reviewed, in the interests of justice and the fact that Dookhan was rarely the sole source of evidence against a drug defendant. They say they have already processed about 1,500 cases from defendants who came forward after news of Dookhan’s misconduct first emerged, and there’s no need for a blanket amnesty now.

It’s another blow to the crime lab business, already reeling from federal criticism of their long-trusted sciences like bullet and tread analysis, reports of sloppy work at the FBI crime lab, and now massive misconduct by a top state chemist. And then another. In the same state.

Temperatures rose further in the Dookhan case earlier this month when the prosecutors sent out a mass form letter to about 20,000 defendants in the 24,000 cases (some people had more than one case), over the ACLU state public defender’s strong objection and even after a request from the Supreme Judicial Court justice handling the case “that the letter not be sent before we have a hearing.” The letter informed defendants that they had the right to challenge their convictions and could not face any greater punishment than already received, but the ACLU said an accompanying Spanish translation was poorly done and that the lack of any official letterhead and a return address in Philadelphia did more harm than good.

The prosecutors and defense bar had been working together on the letter until May, when the government revealed that Dookhan was involved in the cases of 24,000 defendants. The defense bar called that “a jaw-dropping number” and one which made “case-by-case litigation…impossible as a practical matter” because there simply weren’t enough public defenders and court-appointed lawyers to handle 24,000 new cases, particularly as the other crime lab scandal by Farak loomed. Offering defendants an opportunity to revisit their convictions individually negated the need for a dismissal of all cases, which the ACLU public defender saw as an end-run around their court case, filed in 2014 when prosecutors were refusing to provide lists of affected “Dookhan defendants.”

So even though the Supreme Judicial Court, Massachusetts’ highest court, ruled in 2015 that a blanket dismissal of all cases was not appropriate “at this time,” the ACLU this week returned to the high court to renew their call for a “global remedy.” The defense wants all 24,000 convictions either dismissed permanently or dismissed with the option for prosecutors to retry cases where there exists sufficient untainted evidence for another conviction. Carrie Kimball-Monahan, a spokeswoman for the Essex County district attorney, said in every case retried so far in Essex, the drug evidence was confirmed as Dookhan had tested it originally.

Sonja Farak, left, during her arraignment in Massachusetts in January 2013 from stealing drugs and tampering with evidence from a state crime lab. She later pleaded guilty, the second crime lab chemist to do so. The number of cases she affected has not yet been determined. (AP/The Springfield Union News, Don Treeger)

Dookhan misanalyzed, contaminated or didn’t analyze an unknown number of drug samples sent to the lab by police around eastern Massachusetts from 2003 to 2012, though her cases stopped in 2011. “It was a systemic lapse, of epic proportions,” the defense bar brief argues, “which permitted her to fabricate and falsify evidence … the unprecedented number of human beings who have been directly hurt remains shocking.” The lawyers added, “If this status quo prevails, the Dookhan crisis will come to a close by allowing thousands of tainted convictions to stand unaddressed. That is not justice.”

The state’s prosecutors believe they have been seeking justice ever since Dookhan’s misdeeds were discovered in 2012. “Individuals in society at large,” said Jake Wark, the spokesman for Suffolk County district attorney Daniel F. Conley, “are best served when any criminal cases of any type are assessed on their individual merit. This issue has essentially been decided by the state’s highest court. The CPCS [Massachusetts public defender] and the ACLU are calling it a global remedy, but it is no remedy at all.”

Kimball-Monahan said in Essex County “we went right to work to identify these people” in 2012. “The priority was those who were incarcerated,” she said. “In many cases, it was ‘time served, time served, time served.’ The trial court set up special sessions. We started handling it. The only entity dragging their feet on notifying and making a list of individuals potentially harmed was the public defender. They claim they still don’t know. They want to stop us from sending out the letters? It shows me their interest is not in protecting their people or the integrity of the system.”

Matthew Segal of the ACLU Foundation of Massachusetts said after Dookhan was arrested in 2012, prosecutors refused to provide a list of cases she had worked on. After two years, the ACLU sued the Suffolk and Essex prosecutors in 2014 on behalf of two convicted street-level cocaine dealers and one crack user. Though the court said Suffolk and Essex then worked diligently to provide such a list, the other counties did not move so quickly, and “it was a consequence of this litigation that they generated the list” in May, Segal said, four years after the scandal erupted.

Once the defense learned how many cases were potentially affected, things changed. Most of the defendants were poor, and “the indigent defense system has no more capacity to litigate all these cases than it does to build a rocket ship and fly it to Jupiter,” the defense brief claims. The brief notes that the Committee for Public Counsel Services, the state’s public defender, already struggles to keep up with its current caseload, and takes between eight to 16 weeks to find court-appointed lawyers to handle post-conviction cases. Even if the public defender could expand its capacity by one-third and find 500 more court-appointed lawyers per year, “it would take 48 years, i.e. until 2064, to assign certified lawyers for the 24,000 cases tainted by Dookhan’s misconduct.”

The prosecutors strongly disagree. “That is either gross hyperbole or disturbing dysfunction within the defense bar,” said Wark, the Suffolk County spokesman. “There are hundreds of attorneys in public defender offices and thousands of court-appointed attorneys…A handful of state prosecutors has handled the drug lab crisis since day one. They have beaten back the entire backlog of affected cases and the small number that now trickle in are resolved in the ordinary course of business.”

Wark also noted that drug analysis certificates were far from the only evidence in drug cases. Police and witness testimony, drug buys, search warrants, surveillance and phone records are used in most cases, so that jury verdicts or decisions to plead do not rise or fall entirely on a chemist’s analysis, he said. Boston or Salem, Mass., police officers directly witnessed drug use or made drug buys from the three defendants in the pending Supreme Court case, court records show.

Statistics showed that 91 percent of the Dookhan cases were resolved in district, or lower, court, and that 62 percent involved only simple possession. In most possession cases, Wark noted that prosecutors regularly agree to plea bargains with little or no time served. But about one-quarter of the Dookhan cases were distribution cases with mandatory minimum sentences, the defense bar noted. And even with minor convictions, some defendants have been deported based on Dookhan convictions, while others have lost driver’s licenses, housing, student loans and job opportunities. Convictions in Dookhan cases sometimes served as prior convictions for heavier sentencing in later cases. And it is not known how many people might still be incarcerated because of Dookhan evidence.

“Approximately 96 percent of the individuals who have been harmed” by the Dookhan scandal, said Benjamin Keehn of the public defender’s office, “have not had their cases addressed. Unless the Supreme Judicial Court adopts a comprehensive remedy, these individuals will never get justice.” He said his office typically handles or assigns about 1,500 post-conviction cases per year, and would be overwhelmed by 24,000 cases. “Every person harmed by this scandal deserves to receive justice,” Keehn said. “If we take the case-by-case route, they won’t.”

Dismissing the cases but allowing prosecutors to retry them would be “the opposite of a shortcut,” Wark said. “If the defense bar believes it will take 48 years to handle [now], discovery and refiling will keep them busy until the next millennium. There is a very clearly established procedure for defendants who wish to withdraw pleas or vacate their convictions. There’s no reason the defense bar can’t follow that.”

Massachusetts does not have a time limit on when a convicted defendant can return to court with a motion to withdraw their original guilty plea or seek to overturn a jury verdict. And many defendants did that when they learned through the news media of Dookhan’s malfeasance. Wark and Kimball-Monahan noted that special judges and prosecutors were detailed to handle the influx of new post-trial motions. “We weren’t crying lack of resources,” Kimball-Monahan said. “That’s our job. We used considerable resources in IT to datamine a database to identify the Dookhan cases. We provided that to them. It was prosecutors doing their job.”

But who would notify the rest of the 24,000 roughly 20,000 defendants there was a significant new development in their case, and they had a right to an appeal? The two sides differed, again. Wark said, “This is the biggest crime story in Massachusetts since the Boston Strangler. The notion that there was a convicted drug defendant that didn’t know about Dookhan, it strains credulity. Nonetheless, if notice was to be sent, it was clear that the defense bar was the appropriate entity to send it.”

Segal of the ACLU responded, “There is no world in which that is correct.” He said the Supreme Judicial Court, particularly through supervising Justice Margot Botsford, “has made it clear…that it is decidedly the responsibility of prosecutors to identify and notify people who may have been wrongfully convicted.” He said it was not the media’s job to notify defendants, “it is the prosecutor’s job to seek justice for the people it may have, even inadvertently, wrongfully convicted.”

The two sides worked together on a proposed notice letter to Dookhan defendants, saying that the defendants may be able to use appointed counsel to challenge their cases. Then in May, the lawyers learned there were 24,000 defendants cases. At that point, the defense bar concluded that offering each defendant an opportunity to appeal individually was unrealistic, since there weren’t enough lawyers to handle them. They opposed the letter and stopped working on it. The DAs continued with the letter, deleting mention of an appointed attorney, and sent it to the defense and the justice in late August. Justice Botsford quickly emailed the prosecutors “to request that the letter not be sent before we have a hearing or in any event conversation about the letter and its relationship to the case pending before the full court,” court documents show. But the prosecutors felt they had the legal right to do so, and proceeded.

The notice is one half-page in English, and one half in Spanish, headlined, “IMPORTANT NOTICE REGARDING A CLOSED CRIMINAL CASE.” There is no letterhead or government seal. The letter states that “it has been determined that chemist Annie Dookhan tested the drugs in your case(s)…Ms. Dookhan admitted to misconduct in her work at the drug lab” and that the recipient has the right to challenge the conviction. If the challenge succeeds, “your case will be returned to active status,” the letter states, and advises the recipient to “contact your original lawyer” and for more information, contact the Suffolk County district attorney’s office. The return address on the envelope is a P.O. box in Philadelphia for the contractor who mailed the letters.

The Spanish version of the letter was more troubling to the defense bar. Michael O’Laughlin, the director of the interpreter training program at Boston University, said in an affidavit the Spanish letter was incomplete, inaccurate and filled with grammatical errors. He said it uses the Spanish word “crimen” which is a violent felony, normally a murder, though no murders are involved here. “A recipient of this notice who spoke Spanish, but not English, would have great difficulty understanding several of the sentences as translated,” O’Laughlin wrote.

“The notice that the District Attorneys have started sending out is truly awful,” Keehn of the public defender wrote in a motion seeking to have the letter stopped. He said it effectively pledged to recipients there would be public defenders available to represent them, and there were not enough lawyers. “The burdens of a systemic lapse are not to be borne by the defendants who are its victims,” he wrote.

Wark said the defense bar’s refusal to cooperate after May cost them the chance to review the translation, and “it was translated by a native Spanish speaker who didn’t learn English until she was 16.”

The high court declined to stop the prosecutors from sending the notice, but instructed them to keep copies of the letters and any responses they received. Segal said the letter irreparably damaged the process of case-by-case appeals. Wark and Kimball-Monahan said prosecutors stand ready to handle any appeals which come in. The Massachusetts Supreme Judicial Court will hear arguments from both sides in November.

NOTE: This post has been updated to note that there are 24,000 cases involving Dookhan, not 24,000 defendants, and that the public defender, not the ACLU, moved to stop the mailing of the letter to the defendants.